An Investigation of the Belated Production of Documents
in the Oklahoma City Bombing Case
March 19, 2002
Office of the Inspector General
CHAPTER ONE
INTRODUCTION
The Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, exploded on April 19, 1995, following the detonation of a bomb. One hundred and sixty-eight individuals died and several hundred more were injured in the explosion. The Federal Bureau of Investigation (FBI) began an international investigation to identify and capture the perpetrators.
Just 77 minutes after the explosion at the Murrah Building, an Oklahoma State Trooper stopped Timothy McVeigh for a traffic offense less than 80 miles from the bombing site and subsequently arrested him for unlawfully carrying a handgun. Within 48 hours, the FBI identified McVeigh as a prime suspect in the attack on the Murrah Building. Federal officials charged McVeigh with unlawful destruction by explosives.
Over the course of the next several months, the FBI dedicated enormous resources to identifying the perpetrators of the bombing and obtaining the necessary evidence to indict and convict them. The FBI's 56 domestic field offices, as well as its foreign offices, were involved in the investigation. A task force coordinated the efforts of the FBI, prosecutors, and agents from other law enforcement agencies. The investigation, known as OKBOMB, led to the arrests of two additional suspects: Terry Nichols and Michael Fortier. McVeigh and Nichols were indicted on August 10, 1995, for 11 counts of violating Title 18 of the United States Code relating to unlawful use of explosives and weapons of mass destruction as well as first degree murder. Fortier was indicted for conspiracy, false statements, and other crimes.1
In criminal trials, the government must provide to the defense some of the information contained within its files. This is known as the discovery process. The discovery rules that govern all federal trials require that statements of witnesses testifying at trial, evidentiary items to be used at trial, and information exculpatory to the defendants be disclosed. See Rule 16, Federal Rules of Criminal Procedure; Brady v. Maryland, 373 U.S. 83 (1963); Jencks Act, 18 U.S.C. § 3500. Early in the OKBOMB discovery process, however, the United States agreed to go beyond these requirements and disclose all investigative reports. Over 27,000 investigative reports, 13,000 items of physical evidence, and millions of pages of hotel, motel, and telephone records were produced or made available to the defense before or during the trials.
McVeigh's and Nichols' trials were severed. McVeigh was convicted on all 11 counts on June 2, 1997. On August 14, 1997, following a sentencing hearing, McVeigh was sentenced to death. On December 23, 1997, Nichols was convicted of eight counts of involuntary manslaughter and one count of conspiracy. He was sentenced to life imprisonment. Both McVeigh and Nichols appealed their convictions, but the United States Court of Appeals for the Tenth Circuit upheld the convictions and sentences. In December 2000, McVeigh ended his appeals, and his execution was set for May 16, 2001.
Independent of the trial and appellate process, in February 2000, personnel in the FBI's Oklahoma City, Oklahoma, Field Office recognized that the warehouse being used to store the OKBOMB investigative materials was probably inadequate for long-term storage. They sought advice from the FBI's archivist on February 18, 2000. After viewing the warehouse storage facility in May 2000, the archivist agreed that the storage facility was inadequate, and he initiated an archival process to preserve the OKBOMB documents. As part of that process, on December 20, 2000, the archivist sent a memorandum to all FBI field offices instructing them to identify their OKBOMB files, permitting them to destroy copies of certain documents previously sent to the OKBOMB Task Force, and requiring them to send a list of the items that had not been destroyed to the Oklahoma City Field Office.
In January 2001, several field offices responded to the archivist's memorandum by destroying some of their OKBOMB documents as they had been authorized to do. Two field offices sent their entire OKBOMB files to Oklahoma City. When Oklahoma City Field Office personnel examined the material sent by the two field offices, they observed documents that they suspected had not been sent previously to the OKBOMB Task Force and that might not have been disclosed to the OKBOMB defendants as part of the discovery process. The Oklahoma City Field Office personnel notified three FBI supervisors about the potential problem: OKBOMB Inspector in Charge Danny Defenbaugh, who was then the Special Agent in Charge of the Dallas, Texas, Field Office; OKBOMB Supervisory Special Agent Mark White, who was then a Supervisory Special Agent in the Dallas Field Office; and Oklahoma City Field Office Supervisory Special Agent William Teater. After consulting with the archivist, the Oklahoma City personnel sent a memorandum on January 30, 2001, to the field offices instructing them not to destroy any material and to send all OKBOMB materials to Oklahoma City.
Over the course of the next several months, FBI personnel in Oklahoma City received OKBOMB files from FBI field offices and foreign offices. Personnel carefully compared the incoming material to OKBOMB records to determine whether the material had been disclosed to defense counsel. By March 2001, FBI personnel determined that a significant number of items sent in by the field offices likely had not been disclosed to defense counsel even though they were within the categories of items that should have been disclosed pursuant to the discovery agreement. By the end of April 2001, when the review process was completed, the number of suspected undisclosed items was over 700.
On May 7, 2001, nine days before McVeigh's scheduled execution, OKBOMB Inspector in Charge Defenbaugh first notified FBI Headquarters about problems with the discovery in the case, and on May 8 he notified the OKBOMB prosecutor. On the same day, the prosecutor contacted the defense attorneys to notify them of the issue. By the next day, May 9, 2001, the OKBOMB prosecutor provided 715 documents, consisting of approximately 3,100 pages, to the defense attorneys.
The problem with the documents in the McVeigh case was immediately disclosed to the press, and on May 10, 2001, the media reported that the FBI had failed to disclose thousands of pages of documents to the defense. On May 11, 2001, Attorney General John Ashcroft postponed McVeigh's execution until June 11, 2001. The Attorney General stated that he was taking the extraordinary action to allow defense attorneys adequate time to review the documents and to "protect the integrity of our system of justice." Also on May 11, the Attorney General requested that the Department of Justice Office of the Inspector General (OIG) investigate the circumstances surrounding the FBI's belated production of OKBOMB documents.
Within a few days following the initial disclosure, over a hundred more documents that had not been disclosed previously were found in two FBI field offices. As a result, concerns arose as to whether the field offices possessed still more OKBOMB material that needed to be reviewed to determine whether the items had been properly disclosed. During the week following the public disclosure of the problem, FBI Headquarters on several occasions instructed all FBI field offices to send OKBOMB material to Oklahoma City for review. The field offices sent in boxes of additional material, which the FBI also reviewed to determine if any discoverable items had not been disclosed properly. As a result, the FBI determined that a "second wave" of discoverable items, consisting of almost 200 documents, likely had not been disclosed to the defense before the trials. By the end of May, a total of 1,033 items were provided to the defense.
The failure to produce discoverable material timely can have serious consequences. The government commits prosecutorial error if it fails to disclose information to which the defense is entitled, and the defense may allege that the government has violated its discovery obligations even after a conviction. In some instances, the error may be so egregious that the court determines that the defendant did not receive a fair trial, reverses the conviction, and grants the defendant a new trial. After learning about the belated documents, McVeigh's defense attorneys began proceedings to stop his execution. In media reports and in their legal pleadings, the defense attorneys accused the government of intentionally withholding evidence that would have assisted them to prepare for trial.
During the weeks following the government's disclosure of the belated documents, the media reported critically on the issue, and members of Congress, the bombing victims, and the victims' families expressed dismay at what they perceived as bungling by the FBI. The press also reported that many in the public believed the government had intentionally withheld important evidence and that the FBI's reputation had suffered as a result of the perceived mismanagement of one of its most important cases.
On May 11, 2001, Attorney General Ashcroft requested that the Inspector General investigate the circumstances surrounding the belated production of the documents.2 Immediately following the Attorney General's request, the Inspector General assembled a team consisting of five attorneys, two special agents, two auditors, a paralegal, and support personnel to conduct this investigation. The team began conducting interviews that day.
The team conducted almost 200 interviews involving personnel from FBI Headquarters, Main Justice, United States Attorneys' Offices, and numerous FBI field offices. The OIG also interviewed many former FBI and Department employees. OIG investigators traveled to 13 field offices to interview personnel, view the physical premises, and see the process for handling documents in those offices: Atlanta, Baltimore, Buffalo, Columbia, Dallas, Denver, Detroit, Los Angeles, Miami, New Orleans, New York City, Oklahoma City, and Philadelphia. These field offices accounted for over 50 percent of the belated documents.3
The OIG sent a survey to the remaining 43 field offices not visited by OIG investigators. The survey requested information regarding the procedures used in 1995-1997 by the field offices during the OKBOMB investigation, how the field offices responded to the 2000 and 2001 requests for documents, and any document destruction. The OIG also requested explanations for why field offices had failed to provide material to the OKBOMB Task Force during the course of the OKBOMB investigation.
FBI employees fully cooperated with the OIG investigation. Oklahoma City Field Office personnel, in particular Linda Vernon and Peggy Richmond, provided substantial assistance to the OIG. We also appreciate the significant assistance provided by Kevin Perkins, Section Chief, Inspection Division, who was the FBI's liaison with the OIG for this investigation.4
The OIG provided a draft of this report to individuals in the FBI and the Department whose conduct was at issue for comments. Several individuals provided comments, and the OIG made several minor revisions. We discuss these revisions throughout the report, and in some instances discuss why we did not make other requested changes.
This report is organized into eight chapters. This chapter, Chapter One, provides a summary of the belated documents problem and the OIG investigation. Chapter Two provides an overview of the FBI's organizational structure, the FBI's document management system, and the terminology used throughout this report.
After these introductory chapters, the report is divided into two time periods: Chapter Three discusses events occurring from 1995 to 1997 - that is, the period concerning the investigation of the crime and the prosecution of McVeigh and Nichols; Chapters Four, Five, and Six address events occurring in 2000 and 2001, the period involving efforts to archive the OKBOMB documents and the production of documents not disclosed to the defense during the earlier period.
In Chapter Three we analyze why discoverable material was not disclosed to the defense. First, we discuss the discovery agreement, the discovery process, and the OKBOMB Task Force's efforts to obtain investigative documents from the field. We then move to our analysis of the causes for the belated production of discoverable material. In this portion of the chapter, we explain that both the field offices and the OKBOMB Task Force share responsibility for the failure, and we discuss the many factors that contributed to the problem. We then discuss and analyze the evidence pertaining to a key issue in our investigation - whether the government intentionally withheld exculpatory information. We set forth the evidence cited by the defense as supporting their allegation, the OIG's investigation of that evidence, and our conclusion that the government did not intentionally withhold exculpatory evidence.
Chapter Four begins with a chronology of the events occurring in 2000 and 2001 that led to the discovery that over 1,000 documents had not been provided to the defense prior to McVeigh's and Nichols' trials. We describe the archival project, how potentially discoverable documents were discovered, and the process that was used to determine whether discoverable documents had, in fact, been disclosed. After the chronology, we analyze the conduct of the managers who supervised the review project.
In Chapter Five, we discuss and analyze FBI Headquarters' response after it was notified of the belated documents problem, including its attempts to ensure that all OKBOMB materials were found and sent to Oklahoma City.
In Chapter Six, we first discuss the failure of various field offices to properly respond to requests for information, specifically the difficulties encountered by Oklahoma City personnel when trying to obtain documents from the field offices. On many occasions field offices responded untimely to the requests, failed to respond at all, or provided inaccurate information. We also discuss the destruction of OKBOMB documents by the field offices and the effect that destruction might have on the number of belated documents.
In Chapter Seven, we set forth our recommendations for systemic improvements, and Chapter Eight summarizes our conclusions.
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